H46-1 Cases of unfair proceedings requiring
reopening of domestic proceedings –28490/95 Hulki Güneş, judgment of 19/06/03, final on 19/09/0372000/01 Göçmen, judgment of 17/10/2006, final on 17/01/200746661/99 Söylemez, judgment of 21/09/2006, final on
21/12/2006

The purpose of this document is to set out the context and
retrace the history of the examination of these cases by the Deputies at the
Committee of Ministers’ meetings.

Table of Contents

A. Introduction

B. Examination of the cases by the Ministers’ Deputies

C. Appendices

Appendix 1: Letter of the Chairman of the Committee of
Ministers dated 28 February 2005Appendix 2: Response from the Deputy Prime Ministers and
Minister of Foreign Affairs of Turkey dated 1 June 2005Appendix 3: Interim Resolution ResDH(2005)113Appendix 4: Letter of the Chairman of the Committee of
Ministers dated 12 April 2006Appendix 5: Response from the Deputy Prime Minister and
Minister of Foreign Affairs of Turkey dated 8 May 2006Appendix 6: Interim Resolution CM/ResDH(2007)26Appendix 7: Interim Resolution CM/ResDH(2007)150

A. INTRODUCTION

1. The case of Hulki Güneş concerns the lack of
independence and impartiality of the Diyarbakır State Security Court on account
of the presence of a military judge (violation of Article 6§1 of the European
Convention on Human Rights, hereinafter referred to as “the Convention”), and
the unfairness of the proceedings before that court. As a result of the unfair
proceedings, the applicant was sentenced to death (subsequently commuted to life
imprisonment), mainly on the basis of statements made by gendarmes who had never
appeared before the court as well as on the applicant’s confessions obtained
while he was questioned in the absence of a lawyer and under circumstances which
led the European Court of Human Rights (hereinafter referred to as “the Court”)
to find a violation of Article 3 (violation of Article 6§§1 and 3 (d)).

The case also concerns the treatment inflicted on the
applicant while in police custody in 1992 which the Court found to be inhuman
and degrading (violation of Article 3).

2. The cases of Sabahattin Göçmen and Mehmet
Faysal Söylemez also concern the unfairness of the proceedings against the
applicants. In the case of Göçmen, the applicant was sentenced in 1999 to 18
years and 9 months’ imprisonment on the basis of incriminating statements he
made in the absence of a lawyer and under duress while in police custody. In the
case of Söylemez the applicant was sentenced to 20 years’ imprisonment while the
proceedings were pending against the police officers for having ill-treated the
applicant while in custody.

3. In view of the seriousness of the violations of the
applicants’ right to a fair trial, the serious doubts they cast on the outcome
of the criminal proceedings at issue and the gravity of the sentences imposed on
the applicants, specific individual measures - namely the reopening of the
impugned proceedings - to erase them as well as their consequences for the
applicants are urgent.

4. According to the Turkish authorities, restitutio in
integrum, as far as possible, for the applicants can only be achieved by
amending the Code of Criminal Proceedings.

5. However, more than five years after the Court’s
judgment in the case of Hulki Güneş and despite repeated requests from the
Committee of Ministers and its Chair (see, appendices 1, 3, 4, 6 and 7) and the
commitments made to the Chairman of the Committee of Ministers by the Turkish
authorities (see, appendices 2 and 5), no tangible information has been provided
by the Turkish authorities on the measures taken to remove promptly the legal
lacuna preventing the reopening of the domestic proceedings in the applicants’
cases in order to comply with the Court’s judgments.

B. EXAMINATION OF THE CASES BY THE MINISTERS’ DEPUTIES

6. Given the absence of progress in the adoption of the
measures required by the judgments concerned, the Deputies decided in December
2008 to examine these cases “at each regular meeting of the Committee of
Ministers’ Deputies as from their first meeting in January 2009 until the
Turkish authorities provide tangible information on the measures they envisage
taking”.

7. At the 1046th meeting of the Deputies (21 January 2009)
the Secretariat (Director General of Human Rights and Legal Affairs)
recalled the questions raised by the execution of the judgments in these cases,
emphasising that the Hulki Günes case, the “reference case” for all three, had
been pending before the Committee of Ministers for more than five years. He
underlined that, from the first examination of the Hulki Günes by the Committee
in the context of its role under Article 46 of the Convention, the Committee had
clearly indicated the urgent individual measures needed for the defendant state
to conform to its obligation to execute the judgment, namely to amend the Code
of Criminal Procedure (CCP) so as to remove the legal obstacle which prevents
reopening of the domestic proceedings in this case – and also in those of Göcmen
and Söylemez.

The Director General explained why these cases would be
placed, as from the beginning of January 2009, on the agenda of every regular
meeting of the Ministers’ Deputies (see introduction above and appendices). In
this context he recalled the intervention of the Representative of Turkey at the
1044th meeting on 10 December 2008, to the effect that, considering that the
reopening of persons convicted of terrorist offences was at issue, the Turkish
authorities considered that it was not an opportune time to submit a draft
amendment to the CCP and that it was best to wait for more favourable
conditions.

Even if the secretariat could understand the political
reasons mentioned by the Turkish authorities the Director General underlined
that they could not be used, either before the Committee or still less before
the Court, to justify a violation or any delay or failure to execute a judgment
of the Court. He concluded by stating that the aim now was to find out from the
Turkish authorities what concrete measures were envisaged to execute the Court’s
judgments in these cases.

8. The Representative of Turkey said that in his
declaration of 10 December he had already provided all necessary explanations
regarding the state of execution of these cases and the measures required.
Recalling that in his authorities’ view these cases concerned terrorist
offences, he asserted that they would present their proposal to amend the CPP as
soon as they considered that it had some chance of success.

9. The Representative of France, noting what had
already been said and the action taken to date by the Committee of Ministers,
regretted that despite its repeated appeals no concrete measure had been taken.
Whilst understanding the constraints of parliamentary procedure, he formed the
wish that the obstacles to reopening the applicants’ proceedings might be
removed as soon as possible, as a delay of five years since the leading judgment
seemed rather long.

10. The Representative of Switzerland said he could
understand that cases raising questions linked with terrorism posed problems.
But even so, the right of everyone to a fair trial was fundamental. Accordingly,
considering the action taken by the Committee of Ministers in the Hulki Günes
case, he was concerned that a judgment of 2003 had not yet been executed. He
suggested that it would be useful to invite the Turkish authorities to present
an action plan with a precise time-frame for adopting the measures needed to
execute the judgments.

Appendix 1: Letter of the Chairman of the
Committee of Ministers dated 28 February 2005

Appendix 2: Response from the Deputy Prime
Ministers and Minister of Foreign Affairs of Turkey dated 1 June 2005

Appendix 3: Interim Resolution ResDH(2005)113

Section 4.3
(item H46-1290)

COUNCIL OF
EUROPE
COMMITTEE OF MINISTERS

Interim Resolution ResDH(2005)113concerning the judgment of the European Court of Human Rights
of 19 June 2003
in the case of Hulki Güneş against Turkey

(Adopted by the Committee of Ministers on 30 November 2005
at the 948th meeting of the Ministers’ Deputies)

The Committee of Ministers, having regard to the judgment
of the European Court of Human Rights (“the Court”) of 19 June 2003 in the Hulki
Güneş v. Turkey case (application no. 28490/95) transmitted on 19 September 2003
to the Committee for supervision of execution in accordance with Article 46 § 2
of the European Convention on Human Rights (“the Convention”);

Recalling that, in that judgment, the Court found
violations of the applicants’ right, under the Convention, to a fair trial
before the Diyarbakır State Security Court, on account of:

- the lack of independence and impartiality of the
tribunal due to the presence of a military judge on the bench of the State
Security Court (violation of Article 6 § 1);

- the impossibility for the applicant to examine or to
have examined the witnesses who testified against him (violation of Article 6 §§
1 and 3(d));

Noting that, as a result the unfair proceedings, the
applicant was sentenced to death, a sentence which was subsequently commuted to
life imprisonment;

Recalling that the Court also found that the applicant had
been subjected to inhuman and degrading treatment while in police custody
(violation of Article 3);

Stressing the obligation of every state, under Article 46,
paragraph 1, of the Convention, to abide by the judgments of the Court,
including through the adoption of individual measures putting an end to the
violations found and removing as far as possible their effects for the
applicant;

Considering that, in addition to the payment of the just
satisfaction awarded by the Court, the adoption of individual measures is
necessary in view of the specific circumstances of the present case, notably the
extent of the violations found, the serious doubts they cast on the outcome of
the criminal proceedings at issue and the gravity of the sentence imposed on the
applicant;

Regretting that, more than two years after the finding of
the violations in this case, no measures have been taken by the Turkish
authorities, beyond the payment of just satisfaction, to grant the applicant
adequate redress for the violations found;

Considering that the reopening of the impugned domestic
proceedings remains the best means of ensuring restitutio in integrum in
this case;

Regretting that the Turkish Code of Criminal Procedure
does not enable the criminal proceedings to be reopened in the present case,
inasmuch as the Code only provides for the reopening of proceedings in respect
of European Court judgments which became final before 4 February 2003 or
judgments rendered in applications lodged with the Court after 4 February 2003;

Noting with disappointment that the Turkish authorities
have so far not responded to the Committee’s repeated calls to correct this
lacuna in Turkish law;

Recalling, with regard to the other aspects of the
execution of the judgment in this case, that the Turkish authorities have
already taken comprehensive general measures in order to prevent new similar
violations of the right to a fair trial and are presently implementing a
comprehensive set of measures aimed at preventing ill-treatment by members of
the security forces (Interim Resolution ResDH(2005)43);

Recalling in particular the recently amended Article 90 of
the Constitution enabling direct effect to be given in Turkish law to the
requirements of the Convention and case-law of the Court;

CALLS ON the Turkish authorities, without further delay,
to abide by their obligation, under Article 46, paragraph 1, of the Convention,
to redress the violations found in respect of the applicant through the
reopening of the impugned criminal proceedings or other appropriate ad hoc
measures;

DECIDES to continue to supervise the execution of the
Court’s judgment in this case at each of its “Human Rights” meetings until full
compliance is secured.

Appendix 4: Letter of the Chairman of the
Committee of Ministers dated 12 April 2006

Appendix 5: Response from the Deputy Prime
Minister and Minister of Foreign Affairs of Turkey dated 8 May 2006

Execution of the judgment of the
European Court of Human RightsHulki Güneş against Turkey

(Application No. 28490/95, judgment of 19 June 2003, final on 19 September 2003,
Interim Resolution ResDH(2005)113)

The Committee of Ministers, under the terms of Article 46,
paragraph 2, of the Convention for the Protection of Human Rights and
Fundamental Freedoms, which provides that the Committee supervises the execution
of final judgments of the European Court of Human Rights (hereinafter referred
to as “the Convention” and “the Court”);

Having regard to the judgment transmitted by the Court to
the Committee once it had become final;

Recalling that, in that judgment, the Court found
violations of the applicant’s right to a fair trial before the Diyarbakır State
Security Court, on account of:

- the lack of independence and impartiality of the
tribunal due to the presence of a military judge on the bench of the State
Security Court (violation of Article 6, paragraph 1); - the impossibility for the applicant to examine or to
have examined the witnesses who testified against him (violation of Article
6, paragraphs 1 and 3(d));

Noting that the Court found that the applicant had been
subjected to inhuman and degrading treatment while in police custody (violation
of Article 3);

Noting further that, as a result of the unfair proceedings
the applicant was sentenced to death, a sentence which was subsequently commuted
to life imprisonment;

Recalling that, since the first examination of the case by
the Committee of Ministers, the Court’s judgment has been consistently held to
require the adoption of individual measures in view of the extent of the
violations of the right to a fair trial casting serious doubts on the safety of
applicant’s conviction;

Recalling that, since no such individual measures were
taken, the Committee adopted on 30 November 2005 Interim Resolution
ResDH(2005)113 calling on the Turkish authorities to abide by their obligation,
under Article 46, paragraph 1, of the Convention, to redress the violations
found in respect of the applicant and concluding that the reopening of the
impugned criminal proceedings remained the best means to ensure restitutio in
integrum in this case;

Recalling further that the acting Chairmen of the
Committee addressed two letters on 21 February 2005 and 12 April 2006 to their
Turkish counterpart conveying the Committee’s concern at Turkey’s continuing
failure to comply with the judgment and urging for appropriate measures in
respect of the applicant;

Deeply deploring that, notwithstanding the Committee’s
Interim Resolution and the two letters from the Chair, no measures have yet been
taken by the Turkish authorities, beyond the payment of just satisfaction, to
grant the applicant, who is still serving his life sentence, adequate redress
for the violations found;

Noting with concern that, despite the adoption of the new
Article 90 of the Turkish Constitution, the Code of Criminal Procedure still
excludes the reopening of the criminal proceedings in this case as in numerous
other cases pending before the Committee for supervision of execution, as it
only provides reopening of proceedings in respect of Court judgments which
became final before 4 February 2003 or those rendered in applications lodged
with the Court after 4 February 2003;

Recalling in particular that the request for the reopening
of proceedings lodged by the applicant had been rejected by domestic courts
solely on the ground of this temporal limitation and without any assessment of
the need for a new trial to remedy the specific violations found by the Court in
the particular circumstances of the case;

Considering that a continuation of the present situation
would amount to a manifest breach of Turkey’s obligations under Article 46,
paragraph 1, of the Convention;

CALLS UPON the Turkish authorities, without further
delay, to abide by their obligation under Article 46 paragraph 1 of the
Convention to redress the violations found in respect of the applicant;

STRONGLY URGES the Turkish authorities to remove the
legal lacuna preventing the reopening of domestic proceedings in the
applicant’s case.

Appendix 7:

COUNCIL OF EUROPE
COMMITTEE OF MINISTERS

Interim Resolution CM/ResDH(2007)150on the execution of the judgment of the European Court of
Human RightsHulki Güneş against Turkey

(Adopted by the Committee of Ministers
on 5 December 2007,
at the 1013th meeting of the Ministers' Deputies)

(Application No. 28490/95, judgment of 19
June 2003, final on 19 September 2003,Interim Resolutions ResDH(2005)113 and CM/ResDH(2007)26)

The Committee of Ministers, under the terms of Article 46,
paragraph 2, of the Convention for the Protection of Human Rights and
Fundamental Freedoms, which provides that the Committee supervises the execution
of final judgments of the European Court of Human Rights (hereinafter referred
to as “the Convention” and “the Court”);

Having regard to the judgment transmitted by the Court to
the Committee once it had become final;

Recalling that, in that judgment, the Court found
violations of the applicant’s right to a fair trial before the Diyarbakır State
Security Court, on account of:

- the lack of independence and impartiality of the
tribunal due to the presence of a military judge on the bench of the State
Security Court (violation of Article 6, paragraph 1); - the impossibility for the applicant to examine or to
have examined the witnesses who testified against him (violation of Article
6, paragraphs 1 and 3(d));

Noting that the Court found that the applicant had been
subjected to inhuman and degrading treatment while in police custody (violation
of Article 3);

Recalling that, as a result of the unfair proceedings the
applicant was sentenced to death, a sentence which was subsequently commuted to
life imprisonment;

Reiterating that, since the first examination of the case
by the Committee of Ministers dating back to November 2003, it considered that
the Court’s judgment required the adoption of individual measures in view of the
extent of the violations of the right to a fair trial casting serious doubts on
the safety of the applicant’s conviction;

Noting however that, despite the adoption of Article 90 of
the Turkish Constitution, the Code of Criminal Procedure still excludes the
reopening of the criminal proceedings in this case as in numerous other cases
pending before the Committee for supervision of execution, as it only provides
reopening of proceedings in respect of Court judgments which became final before
4 February 2003 or those rendered in applications lodged with the Court after
4 February 2003;

Recalling that the request for the reopening of
proceedings lodged by the applicant had been rejected by domestic courts solely
on the ground of this temporal limitation and without any assessment of the need
for a new trial to remedy the specific violations found by the Court in the
particular circumstances of the case;

Stressing that the Committee has adopted two interim
resolutions so far (on 30 November 2005 Interim Resolution ResDH(2005)113 and on
4 April 2007 Interim Resolution CM/ResDH(2007)26) calling upon the Turkish
authorities to abide by their obligation, under Article 46, paragraph 1, of the
Convention, to redress the violations found in respect of the applicant and
urging them to remove the legal lacuna preventing the reopening of domestic
proceedings in the applicant’s case;

Recalling further that the acting Chairmen of the
Committee addressed two letters on 21 February 2005 and 12 April 2006 to their
Turkish counterpart conveying the Committee’s concern at Turkey’s continuing
failure to comply with the judgment and urging for appropriate measures in
respect of the applicant;

Deeply deploring that, notwithstanding the Committee’s two
Interim Resolutions and the two letters from the Chair, no measures have yet
been taken by the Turkish authorities, beyond the payment of just satisfaction,
to grant the applicant, who is still serving his life sentence, adequate redress
for the violations found;

Noting with grave concern that two similar cases, namely
the cases of Göçmen and Söylemez, pending before the Committee also call for
reopening of domestic proceedings because the applicants were deprived of their
right to a fair trial and are still serving their prison sentences;

Stressing that failure to adopt the necessary measures in
the present case prevents the possibility of reopening of proceedings in those
cases;

Reiterating that a continuation of the present situation
would amount to a manifest breach of Turkey’s obligations under Article 46,
paragraph 1, of the Convention;

FIRMLY RECALLS the obligation of the Turkish
authorities under Article 46, paragraph 1, of the Convention to redress the
violations found in respect of the applicant;

STRONGLY URGES the Turkish authorities to remove
promptly the legal lacuna preventing the reopening of domestic proceedings
in the applicant’s case;

DECIDES to examine the implementation of the present
judgment at each human rights meeting until the necessary urgent measures
are adopted.

1Adopted by the Committee of Ministers on 4
April 2007 at the 992nd meeting of the Ministers’ Deputies